Pregnancy as a “Personal Circumstance”? Miceli-Riggins and Canadian Equality Jurisprudence

Abstract

This article examines the recent decision of the Federal Court of Appeal in Miceli-Riggins v Canada (Attorney General) as an example of the approach which Canadian courts are taking to the interpretation of section 15 of the Canadian Charter of Rights and Freedoms as it applies to social benefits. This approach follows the Supreme Court’s recent attempts to “restate” that law in a series of cases, including Kapp, Withler and Québec v A. It argued that, whatever the intention of the Supreme Court, the restatement of the law has created general confusion in lower courts and tribunals. In addition, in cases concerning social benefits such as Withler and Gosselin, the Court’s statements, that in the context of a larger benefits scheme “perfect correspondence is not required” between a benefits program and the actual needs and circumstances of the claimant group, have led to a situation where lower courts feel that they do not need to engage seriously with an analysis of discrimination.